Mojo - November 2012

Will Congress prevent American citizens from being subject to indefinite military detention? A bipartisan group of senators have crafted an amendment to the latest defense bill that they believe will do exactly that.

"The federal government experimented with indefinite detention of United States citizens during World War II, a mistake we now recognize as a betrayal of our core values," said Senator Dianne Feinstein (D-Calif) Wednesday while introducing the amendment. "Let's not repeat it." Feinstein, who co-authored the amendment with Senator Mike Lee (R-Utah) has support not only from Senate Democrats Chris Coons (D-Del) Kirsten Gillibrand (D-NY) and Frank Lautenberg (D-NJ) but also Republican Senators Rand Paul, (R-Ky) Susan Collins (R-Maine) and Mark Kirk (R-Ill). "Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values," Lee said. The amendment could be voted on as early as Thursday, but it'll still have to survive the House, where the GOP majority has scuttled similar efforts to prevent indefinite detention of Americans.

About a year ago, President Barack Obama signed the 2012 National Defense Authorization Act promising not to use Congress' authorization of war against Al Qaeda to deny American citizens suspected of terrorism a fair trial by placing them in indefinite military detention. Senators, deadlocked over whether or not the Constitution allows such detention, agreed to adopt an amendment that left unaswered the question of whether Americans could be detained without trial. This year, Feinstein and Lee think their amendment blocking such detention for American citizens and legal permanent residents can pass.

Not all civil liberties groups however, are supporting the effort. That's because they think anyone on American soil should be given a trial if accused of a crime, given that the Constitution protects "persons," rather than "citizens." The Feinstein-Lee amendment is "inconsistent with the constitutional principle that basic due process applies to everyone in the US," says ACLU legislative counsel Chris Anders. Not only that, but Anders worries that the amendment could be construed to actually imply that the government has the constitutional authority for such detention.

The way the amendment reads now, a foreign visitor like Umar Abdulmutallab—the Nigerian who tried to explode a bomb in his underpants on a flight to Detroit several years ago—could still be subject to indefinite military detention.

So why does Feinstein and Lee's amendment only apply to US citizens and legal residents? Becuase that's what could pass, Feinstein said Wednesday. While she could support extending the protection to any person apprehended on US soil, "the question is whether there is enough support in this body," Feinstein said. "I do not believe there is."

Democrats won big on election night in New Hampshire. They held onto the governor's office, took back two seats in Congress, and won control of the state house of representatives. But for progressives, the victories went even deeper than that: At least four seats in the legislature went to activists with the Occupy Wall Street satellite, Occupy New Hampshire. Granite State progressive blogger Bill Tucker catches the group touting its success on Facebook: "We aren't going to reveal names, they can if they want. But we have 4 or 5 people who were very involved Occupiers, and another handful who were part of the network—either already Reps or newly elected. We got juice—or maybe just a little pulp."

How did this happen? It's largely a consequence of the state's uniquely enormous legislature. At 400 members (for 1.3 million people) it's the third-largest legislative body in the English-speaking world, and you only need about a thousand votes to win a seat.

With the election wins, New Hampshire becomes the first state where Occupiers have secured an actual foothold in the political arena. But they're not the only group of ideological activists who are winning elections in the Granite State; they're following the trail already blazed by members of the Free State Project, the movement to repopulate New Hampshire with libertarians and slowly turn the state into a small-government (or no-government) paradise. As I reported in a piece for the magazine last summer, the movement has finally begun to make inroads in the state legislature, winning seats—while often keeping their affiliation under wraps—and then getting to work deregulating margarine and de-funding high-speed rail. As conservatives struggled statewide this November, the libertarians held their own. Free State Project president Carla Gericke announced:

Over the past eight years, FSP participants who have become state representatives went from zero to 1, to four, to 12-14 in 2010, to eleven this cycle. We only have 1,100 movers on the ground. With only 5% of our goal movers in NH, political FSP participants held onto the status quo while Republicans got trounced. Baby steps, people. It ain't called a "project" for nothing!

Take, for example, the case of newly elected Rep. Tim O'Flaherty, a self-described "anarchist" who ran as a Democrat and edged out Republican challenger Dan Garthwaite in a Manchester district. As it happens, both O'Flaherty and Garthwaite are supporters of the Free State Project. They're also roommates. The two rivals live at "Porc Manor," a Manchester home that's become a flophouse of sorts for Free States. (Supporters called themselves "porcupines" because they bristle only when provoked.) A 2009 landlord manual for Porc Manor offers tip for renting to Free Staters, noting that, for instance, "A lot of porcupines will frown on deposits, mostly because they feel their status as acknowledged defenders of property rights makes them immune to the reasons landlords require deposits."

Their living arrangement served as fuel for perhaps the most unusual storyline in any election this year, or maybe ever. As the Manchester Union-Leader's Mark Hayward explained:

In one of the more bizarre moments in the campaign, O'Flaherty wrote to Comedy Central's election Internet site to say he and Garthwaite are lovers, and the election would decide certain role-playing aspects of their relationship. (We're talking dominance and jackboots here.)

But O'Flaherty, who is gay, said he doesn't know Garthwaite well, and he made the comments to undermine his opponent with his Republican base.

No really, this actually happened. Here's what O'Flaherty told Comedy Central's Dan Poppy in an email:

Things were hot and heavy when Dan and I first met and we found ourselves living in the same boarding house. We have had some heated political arguments but I haven't been able to persuade Dan to turn from his Statist beliefs. Lately we've been looking for ways to keep things interesting in the bedroom and we've been exploring some roleplaying. Dan likes to play the cop/thug, forcing me to lick his jackboot.

I've become concerned recently that our roleplaying was counter-revolutionary and contrary to my anarchist principles. Violent revolt was a looming prospect but Dan (the consummate Statist and devout believer in the Democratic Faith) suggested we put the matter to a vote. We agreed we would both run for State Representative but on opposite sides of the ticket, the winner gets to choose his role to play in the bedroom.

Now voters in Manchester's Ward 5 will decide the outcome. If Dan beats me in the election his Statist domination will continue unchecked. If voters should choose me they will quite literally be saying "Fu*% the State(ist)." Please tell your readers to spew their vitriol on my Facebook page.

In his interview with the Union-Leader, O'Flaherty also floated an unusual hypothesis for his primary victory over former state Rep. Richard Komi: "He said Komi may have suffered from name problems; his name is similar to Joseph Kony, the Ugandan guerilla leader whose capture was encouraged by the Kony 2012 effort, a viral Internet video."

On November 8th, when the vote count in Manchester's Ward 5 was made official, O'Flaherty hopped on Facebook with a simple but deliberate message for his supporters: "Victory is mine!" He added, "It was the best $2 i've ever spent!"

Earlier today, President Barack Obama took the battle over the fiscal cliff to Twitter, urging his followers to voice their support for his budget plan with the hashtag #MY2K. The tag refers to the $2,200 that the average American family will save each year if Congress votes to extend the Bush tax cuts for all but the top 2 percent of earners.

Obama's Twitter campaign reflects a push to mobilize his large army of grassroots supporters beyond the electoral campaign. His strategists don't want to repeat the mistakes of four years ago, when the populist energy from his campaign fizzled for lack of any meaningful way for his supporters to stay involved. Vocal support from liberals for the middle-class tax cuts might make it easier for Obama to boost taxes on the rich.

The #MY2K hashtag quickly began trending on Twitter. But waging a policy battle with social media isn't as simple as it might sound. Here's a sample of tweets that use Obama's hashtag:

The origninal tweet:

"Call your members of Congress. Write them an email. Tweet it using the hashtag #My2K." —President Obama

With options running out, the future of Mississippi's only remaining abortion clinic likely depends on a federal judge.

The Jackson Women's Health Organization, represented by the Center for Reproductive Rights (CRR), has filed another motion calling on the court to block enforcement of a new state law that would shut down the clinic for good. Passed last April in a fairly blatant attempt to make Mississippi an "abortion-free" state, the law requires doctors who provide abortions to have official admitting privileges at a local hospital. The doctors at Jackson Women's Health, both of whom travel to Jackson from out of state, have been trying to secure the privileges for months.

Those efforts have proven fruitless. In July, the court allowed the law to go into effect but blocked any penalties from being enforced while the hospital application process played out, and the department of health granted them six months to try to come into compliance. But, at this point, the result of the application process is a "forgone conclusion," according to CRR.

The doctors' applications have been rejected by every hospital they've approached. Two hospitals wouldn't let them apply at all. Five others denied the applications for "administrative" reasons, before even completely reviewing the doctors' qualifications. Their rejection letters cited their policies regarding abortion and "concern about disruption to the hospital's business within the community." The clinic wrote follow-up letters to make sure the hospitals understood that the doctors were only seeking privileges to comply with the new law and wouldn't actually be providing abortions at the hospital, but no dice.

"Anti-choice politicians were very clear that they had one in thing in mind when they passed this law: to shut down Mississippi's only abortion clinic," said CRR's president Nancy Northup in a press release. "It isn't a surprise to anyone that the physicians at the Jackson Women's Health Organization haven't been able to obtain admitting privileges at any local hospital."

Unless the law is blocked, the clinic will be in violation on January 11. If it's forced to close, Mississippi would be the only state in the country without a single abortion clinic, and women would have to travel to surrounding states to end their pregnancies. But the clinic's owner, Diane Derzis, says she's hopeful that the judge will declare the law unconstitutional. "Without him doing so," she warns, "Mississippi has banned abortion."

When it comes to protecting whistleblowers, President Obama's track record has been fairly bleak. In his first term, he trampled over them on his quest to aggressively prosecute government leakers. But Obama's legacy on the issue may have changed on Tuesday when he signeda law called the Whistleblower Protection Enhancement Act, a far-reaching bill that affords federal whistleblowers a host of new safeguards.

This hard-fought law (activists have been working to get it passed for more than a decade) upgrades the existing protections for federal employees who witness waste, fraud, or abuse within the federal government.

Specifically, the law lowers the standard of proof whistleblowers must provide in order to receive protection and closes judicially-created loopholes that were added to the original 1989 Whistleblower Protection Act. It also makes it easier for the Office of Special Counsel, the federal government's whistleblower protection agency, to discipline employers or agencies who retaliate, and it provides compensatory damages to certain whistleblowers who have successful cases. (This compensation is different than the monetary awards available to certain whistleblowers in the private sector. The Securities and Exchange Commission, which received 3,000 tips last year, rewards private sector whistleblowers who expose financial corruption, and whistleblowers who bring Qui Tam cases are also eligible for compensation under the False Claims Act.)

The Obama administration has angered whistleblower advocates in the past for being particularly tough on whistleblowers and prosecuting them under the Espionage Act. But, with the passage of the Whistleblower Protection Enhancement Act, whistleblower advocates seems to think the administration has turned over a new leaf. According to the Government Accountability Project (GAP), Obama restored a large portion of the bill that protects national security whistleblowers after the House gutted it via a presidential directive.

"Most Presidents have offered lip service for whistleblower rights, but President Obama fought to give them more teeth," Tom Devine, legal director of GAP said in a statement.

Idaho state Sen. Sen. Sheryl Nuxoll (R) has found a daring plan to reverse the results of the November election and turn the keys to the Oval Office over to Mitt Romney: Boycott the Electoral College. Last Monday, Nuxoll, a Republican, blasted out a link on her Twitter feed to a new proposal from Tea Party Nation founder Judson Phillips, explaining that if 17 Romney states rejected the Electoral College, they could throw the outcome of the election to the GOP-controlled House of Representatives. As Phillips put it, referring to episodes in which Democratic lawmakers crossed state lines to avoid controversial votes, "Democrats have actually set this precedent of refusing to participate to deny Republicans a quorum. They did this in Wisconsin and in Texas. Why can't we do this with the Electoral College?"

So is this possible? Has the key to a Romney presidency been hiding in plain sight all along?

Constitutional scholar David Adler, director of the Andrus Center for Public Policy at Boise State University, said the plan is not "totally constitutional," as touted in the article, but is instead "a radical, revolutionary proposal that has no basis in federal law or the architecture of the Constitution."

Four female service members are suing Secretary of Defense Leon Panetta over the military's exclusion policy for women in combat roles. Backed by the American Civil Liberties Union and the Service Women’s Action Network, the women argue that the policy has created a "brass ceiling" that prevents them advancing as far as their male colleagues.

They also note that the policy does not fit the modern military, where women are often sent out into combat and performing the same jobs as male colleagues, without the ability to formally advance. "The modern battlefield means there are no frontlines or safe zones," said Capt. Zoe Bedell, 27, who serves in the US Marine Corps Reserves. "The combat exclusion rule does not recognize that reality." Bedell, who served in Afghanistan, said that women in her unit patrolled with men and carried the same equipment as men, even if they were formally barred from serving in combat units. She said she left active duty for the reserves because the combat exclusion policy "limits my future in the Marine Corps."

Current Dept. of Defense policy prohibits women from being assigned to units below the brigade level that engage in direct ground combat. In February 2011, the DoD announced a rule change that opened 14,000 more jobs to women in the military, but another 238,000 positions are still off-limits. That change "falls short," said Ariela Migdal, a senior staff attorney with ACLU's Women's Rights Project. "It just does a disservice to women who have put their lives on the line to say we're going to make some changes around the edges."

Also joining in the suit are Maj. Mary Jennings Hegar, 36, of the California Air National Guard; First Lt. Colleen Farrell, 26, of the U.S. Marine Corps; and Staff Sgt. Jennifer Hunt, 28, of the U.S. Army Reserves.

This suit is separate from a previous case filed in May on behalf of two Army reservists who said that the rule limited their ability to advance. The ACLU's Migdal said that their suit is intended to "demand that DOD bring policy in line with the rest of society, and with the realities of the modern military."

According to my Google Alerts, Monday's big Rick Santorum news (such as it is) was his declaration on Piers Morgan's talk show that he is "open" to another presidential run in 2016. We sort of knew that, though, and anyway it's 2012 right now; the speculation can wait. The real story is what he did with the rest of the day. Dana Milbank explains:

Santorum, joined by Sen. Mike Lee (R-Utah), declared his wish that the Senate reject the U.N. Convention on the Rights of Persons With Disabilities — a human rights treaty negotiated during George W. Bush’s administration and ratified by 126 nations, including China, Russia, Iran, Cuba, Syria and Saudi Arabia.

The former presidential candidate pronounced his “grave concerns” about the treaty, which forbids discrimination against people with AIDS, who are blind, who use wheelchairs and the like. “This is a direct assault on us,” he declared at a news conference.

The treaty, which is up for ratification in the Senate, has plenty of Republican support (Arizona Sen. John McCain backs it). But it's become a rallying cry on the far-right, where conservative Christian activists fear that it will water down American sovereignty and threaten families. As homeschooling activist Michael Farris put it in August, "My kid wears glasses, now they’re disabled, now the UN gets control over them; my child's got a mild case of ADHD, now you’re under control of the UN treaty."

The United Nations isn't really coming for your kids. As Milbank points out, the treaty exists mainly to nudge other countries a little closer the United States' standards. The irony here is that is Santorum's daughter Bella, who he brought with him to the press conference, is precisely the kind of special-needs child the treaty is designed to protect. But much like his opposition to the Affordable Care Act and its prohibition on denying access to people with expensive preexisting conditions, Santorum's paranoid fears of a Big-Brother takeover only serve to undermine policies that are designed to benefit families like his own.